The Supreme Court in McBurney at page 6 saw FOIA rights as political rights: "The state FOIA essentially represents a mechanism by which those who ultimately hold sovereign power (i.e., the citizens of the Commonwealth) may obtain an accounting from the public officials to whom they delegate the exercise of that power." Mike mentions Stewart Jay's article on the original meaning of Article IV, which Jay thinks applies even to political rights like voting and office-holding, and, one would think, FOIA rights too. But it's hard to square the inclusion of political rights in Article IV with Jay's approval of the very widespread residency limits on such rights (see pages 56 to 59 and notes 268 to 271). Residency requirements are citizenship requirements, at least under the Fourteenth Amendment's "and of the state wherein they reside" state citizenship rule, which I take it was generally seen as declaratory of earlier law (see, e.g., here).

As Mike Ramsey recently noted, President Obama’s order not to enforce the immigration laws against certain illegal immigrants (who came to the US as children) has been challenged. The basis of the challenge is that Obama's order is inconsistent with the governing statute. The District Court recently held that the plaintiffs are likely to prevail in their claim, although it has ordered additional briefing on a jurisdictional issue. The court wrote that the statute used the word “shall” and therefore imposed a mandatory duty on the executive.

Let’s assume that Congress did take away the President’s prosecutorial discretion. Is that constitutional? Mike is skeptical that Congress can take away prosecutorial discretion, but I am not. In my opinion, Congress can do so, at least under the Constitution's original meaning. First, the President is normally required to follow laws that Congress passes. Even if the President does not like the law, that does not give him the right to ignore it. The King of England once asserted that power, but the Glorious Revolution ended it and the Take Care Clause adopts that principle for the U.S. Constitution. Thus, if Congress says that all persons who are 65 years of age and meet certain conditions are entitled to Social Security benefits, the President cannot ignore the statutory directive. Similarly, if Congress says persons meeting other conditions are not entitled such Social Security benefits, the President must also respect that requirement.

Second, it is important to distinguish cases of criminal prosecution, civil lawsuits, and civil entitlements (like Social Security). The strongest case historically for allowing prosecutorial discretion involves criminal prosecution. The executive will often not have the resources to bring all cases and there are a variety of factors that are involved, such as ease of proving guilt and the wrongfulness of the action. It is not clear how these various factors should be weighed against one another. In the absence of Congress specifying how to allocate the executive’s limited resources, it is assumed the prosecutor enjoys discretion to take these factors into account and to weigh them.

Third, but what if the Congress attempts to take away this discretion? To do so, it must make a decision as to how the executive should behave. One law that was reviewed by the Supreme Court in Dunlop v Bachowski (1975) involved a provision of a labor statute which provided that upon filing of a complaint by a union member, the Secretary shall investigate such complaint and, if he finds probable cause to believe that a violation has occurred, he shall bring a civil action. This provision, which requires the Secretary to bring actions whenever he believe there is probable cause of a violation, significantly takes away his discretion. I think that this is constitutional and would be constitutional even if it involved criminal prosecutions. The reason there has been prosecutorial discretion traditionally is that it makes sense to grant that discretion because it is so hard to adopt a sensible alternative arrangement. The provision in Dunlop could lead to serious problems if applied more generally. But that does not mean it is unconstitutional.

Thus, if it turns out that the immigration statute takes away the President's discretion, then I believe the statute would be constitutional.

Virginia’s Freedom of Information Act, which grants Virginia citizens access to all public records, but grants no such right to non-Virginians, does not violate the Privileges and Immunities Clause, which protects only those privileges and immunities that are “fundamental.”

But if Stewart Jay is right, that's the wrong (originalist) way to look at it. Here again is the provocative abstract from his recent paper:

The Privileges and Immunities Clause of Article IV provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” According to Alexander Hamilton, the clause was “the basis of the union,” which may seem odd given its minor significance in modern constitutional law. Part of the reason for its relative unimportance today is the development of constitutional doctrines unforeseeable in the eighteenth century: the invention of the Dormant Commerce Clause and the enactment of the Fourteenth Amendment, which prohibit much of the interstate discrimination that Article IV’s clause was intended to prevent. However, a major explanation for the unseemly fate of the clause lies with early judges who were not faithful to its original purpose. Courts and scholars have perpetuated their errors.

The clause had one overriding purpose: to assure that Americans were not treated as aliens when in states away from their place of citizenship. It was intended to preserve the benefits that Americans had as British subjects, to be afforded the same as local residents anywhere in the country. The advantages of citizenship (or being a subject) were many, ranging from the protection of life, limb, and property to commercial advantages and access to public resources. The multifarious meanings of “privileges” and “immunities” in eighteenth-century writings show that they encompassed every kind of advantage that came from citizenship. This is why Hamilton could claim the clause was “the basis of the union".

There is compelling reason to conclude that the Privileges and Immunities Clause was intended to guarantee Americans traveling or temporarily residing in another state, or doing business or owning property outside their home states, that they would be treated exactly like the local people, without exception, and regardless of whether the right was recognized by other states, including their own. No court and no scholar has ever reached this conclusion, but it is amply supported by the evidence presented here.

Professor Jay is an outstanding and cautious scholar, so if he says something with this level of confidence, it's likely true. Perhaps the Court can be encouraged at some point to take a closer look at the issue.

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.

04/28/2013

[The government's petition sets forth] a detailed argument, defending the appointments on originalist grounds and seeking to refute the D.C. Circuit’s conclusion that recess appointments can only be made during intersession recesses and only to fill vacancies that arose during the recess. It looks to me like it incorporates a fair amount of research into founding-era recess appointments that had not been undertaken even as recently as Edward Hartnett’s important 2005 article on the subject. For example, the brief cites a couple of recess appointments by President Washington (Pet. 25 n.10) that it argues conflict with the view that the vacancy must arise during the recess of the Senate, neither of which Hartnett mustered during his fairly detailed discussion of the first President’s practices (see pp. 384-387).

The post also links to this Reuters report that "Gary Lofland, the Seattle attorney representing Noel Canning, said they would encourage the court to take the case."

04/27/2013

Michael Stokes Paulsen (University of St. Thomas School of Law) has posted The Plausibility of Personhood (74 Ohio State Law Journal 14 (2012)) on SSRN. Here is the abstract:

Is a living human embryo or fetus a “person” within the legal meaning of the term, as used in the Fourteenth Amendment to the U.S. Constitution? This article argues that this question is close, difficult, and exceedingly important. Roe v. Wade, of course, answered the question “no,” yet the Court acknowledged that, if the legal personhood of the fetus could be established, the case for a right to abortion “collapses” – “for the fetus’ right to life would then be guaranteed specifically by the Amendment.” The Court nonetheless gave the question only passing attention in Roe, and subsequent scholarship for the most part has not addressed the question in a serious, balanced, systematic fashion.

This article examines the issue of the constitutional personhood of the human fetus from the perspectives of the full range of usually-accepted methods of constitutional interpretation – text, structure, evidence of historical intention, precedent or practice, and policy – and concludes that the case for personhood is at least plausible and arguably much stronger than the case for the opposite conclusion that was the essential first premise of Roe.

04/26/2013

The challenge to President Obama's order not to enforce the immigration laws against certain illegal immigrants (Crane v. Napolitano) has taken another step forward: the trial judge found the challengers have a likelihood of success on the merits (in the context of a request for a preliminary injunction). However, the court ordered additional brief on a jurisdictional issue (whether the challenge -- which is brought by immigration enforcement agents -- should be resolved administratively as an employment matter).

On the merits, the court's opinion finds that the word "shall" in the relevant statute is mandatory, leaving no room for discretion. This leads to a constitutional question: is it unconstitutional for Congress to eliminate prosecutorial discretion? That argument gets rejected, with the court giving this analysis:

When the Executive “takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb,” and “[c]ourts can sustain exclusive [executive] control in such a case” only if that particular subject matter “is within [the Executive’s] domain and beyond control by Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–40 (1952) (Jackson, J., concurring). Because Section 1225(b)(2)(A) expressly requires immigration officers to initiate removal proceedings against applicants for admission who are not “clearly and beyond a doubt entitled to be admitted,” the Court can uphold DHS’s discretion to refrain from initiating removal proceedings under those circumstances only if Congress does not have power to legislate in the area of immigration law with regard to the removal of aliens.

Congress’s power over immigration is rooted in the Constitution, is inherent in the powers of sovereign nations, and is an incident of international law. U.S. Const. art. I, § 8, cl. 4 (“The Congress shall have power . . . [t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.”); Chae Chan Ping v. United States, 130 U.S. 581, 603–07 (1889) (“That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy.”); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) (“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”); ... Congress unquestionably has the ability to legislate in the area of immigration law with regard to the removal of aliens. Because immigration law is not “within [the Executive’s] domain and beyond control by Congress,” Congress has the ability to eliminate DHS’s discretion with respect to when to initiate removal proceedings against an alien, and DHS cannot implement measures that are incompatible with Congressional intent.

On a quick read, that doesn't seem clearly right to me. The question isn't whether immigration is an area "within [the Executive’s] domain and beyond control by Congress," but whether immigration enforcement (and thus, more broadly, law enforcement) is.

Further, as I have tentatively suggested, immigration may be an area where the President has a stronger degree of constitutionally protected discretion.

04/25/2013

My position on the constitutional question of whether gay marriage is required is that there are reasonable interpretations on both sides of this issue. One danger of such a position is that it puts one in a no win position, but – hey – you have to go where the evidence leads you. Mike Ramsey (with arguments I mainly agree with) has been responding to critics of the argument that the 14th Amendment does require same sex marriage. Here I want to respond to Mike’s criticisms of the arguments that I offered for why one might conclude that same sex marriage is not required.

Mike focused on one small part of my post addressing the issue whether sexual orientation is like race. Rather than get into this issue – perhaps I will in the future – I want to note that Mike fails to address the basic question as to how we identify what moral rules are sufficient for justifying the law drawing a distinction under the 14th Amendment. This is a potentially independent reason for not requiring gay marriage. I had noted that at the time of the Amendment traditional moral rules would have been deemed to be a sufficient basis for a law to draw a distinction. (Under one theory, a law that drew a distinction based on traditional morality would not be seen as class legislation.)

One response that Mike appears to make is that there were moral objections to interracial behavior. Mike writes: “But many laws that discriminated on the basis of race involved behavior that people at the time thought was immoral. For example, consider the various rules that prevented blacks and whites from associating in public.” Thus, he seems to suggest that relying on traditional morality proves too much, since it seems to allow laws that discriminate based on race.

But Mike's argument does not indicate that traditional moral principles could not serve as a constitutional basis for drawing distinctions. One way to read the 14th Amendment is that it treated racial distinctions as extremely problematic – as paradigmatic instances of arbitrary laws – but left other distinctions to be determined by more general principles. Put differently, racial distinctions were core cases of class legislation, but other distinctions were not. In that event, one needs a method of determining what moral distinctions were permissible. Allowing traditional moral distinctions has much to be said for it as an interpretation of what the 14th Amendment allowed.

One might wonder what justifies treating racial distinctions that some might regard as justified by traditional morality differently than other aspects of traditional morality. But, first, it is not clear that traditional morality generally, as opposed to morality in some areas of the country, approved general racial distinctions. Second, it is not uncommon for people to use a term such as equality in the manner described – as adopting a principle (prohibiting class legislation and allowing traditional morality to stand as showing that something is not class legislation) while at the same time treating a core case as being prohibited under that principle (race discrimination is prohibited, even though some regard it as traditional morality).

I said at the beginning of this post, I think there are reasonable arguments on both sides of this issue. So I am disagreeing with Mike not because I believe his argument in favor same sex marriage is wrong, but because he seems to claim that the argument against same sex marriage is unreasonable.

(Cross posted at the Liberty Law Blog)

Mike Ramsey clarifies: I did not mean to suggest that the originalist argument against a constitutional right to same-sex marriage is unreasonable. My claim is only that the originalist argument in favor is plausible.

This article examines the role of the often-overlooked contract clause in the context of the current financial crisis experienced by many states and localities. In the face of severe budget shortfalls, state and local governments have sought to modify public employee contacts, especially with respect to health and pension benefits. Federal and state courts have reached confliction opinions concerning legislation that curtails existing contractual rights for such employees. The article criticizes the prevailing multi-prong test for determining contract clause violations as vague and malleable. It also calls into question the notion that courts should employ a heightened standard of review when states alter their own contractual undertakings. Further, the article proposes a return to a principled reading of the contract clause, arguing that financial problems are not a excuse to avoid contractual obligations of any sort, and that all contracts, public as well as private, should be held to the same standard of review. It maintains that public employees should not be singled out for harsh treatment in economically distressed times, but that neither should they be treated as a privileged class.

04/24/2013

Andrew Hyman replies to this post by David Upham, continuing their conversation on whether a constitutional protection for interracial marriage is best located in the equal protection clause or the privileges or immunities clause:

The contract provision of the 1866 Civil Rights Act was sometimes invoked in that era against laws banning interracial marriage, and the Equal Protection (EP) Clause was sometimes invoked to support that statutory provision. Thus, there was no need to invoke the EP Clause directly, as Professor Upham suggests.

Moreover, I don't see how it is suggested by the text of the Privileges or Immunities (P or I) Clause that the word "citizens" refers to anything more than the citizens subject to the clause, rather than citizens of previous generations as Professor Upham suggests.

Professor Upham says that Congress (not just the states) must be bound to respect the privileges protected by the P or I Clause, by virtue of the Comity Clause in Article IV. But that is not how the Supreme Court has interpreted the Comity Clause (which requires little more than that states treat visitors equally and that citizens be allowed to go and enjoy privileges and immunities in other states), and such a broad interpretation would render the P or I Clause superfluous.

Regarding Dred Scott, Professor Upham notes that Chief Justice Taney mentioned that black citizens would be entitled to some rights that are not enumerated in the federal Constitution, but that was in Taney's discussion of privileges and immunities of state citizenship under the Comity Clause when a person travels to another state and is thus entitled to equal rights. Therefore, I don't think that Professor Upham has come to grips with the common ground in Dred Scott that I pointed to and quoted, regarding the privileges and immunities that are enforceable against the federal government.